Paul F. deLespinasse: Anti-discrimination law: Time for an honest re-examination

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By Paul F. deLespinasse

The Daily Telegram - Adrian, MI

By Paul F. deLespinasse

Posted Jan. 5, 2013 at 9:00 AM

By Paul F. deLespinasse
Posted Jan. 5, 2013 at 9:00 AM

There has been much harrumphing about the Iowa Supreme Court’s recent decision in favor of a dentist who fired his long-time assistant because his lust for her threatened his marriage. The commentaries thus far have been one-sided, but the case invites serious re-consideration of antidiscrimination laws in general.

Anybody who criticizes antidiscrimination legislation risks being branded as a racial bigot, since the first major examples of such legislation were the civil rights laws of the 1960s. The obviously noble objective of this legislation inhibits criticism of the means by which that goal was pursued.

The basic problem with making discrimination illegal is that genuine laws are stated in terms of actions. Some actions are prohibited, and those which are not prohibited are perfectly legal. But discrimination is not an action at all; it is just a possible reason for or motivation of an action.

An employer’s decision not to hire a particular individual or to fire that person, for example, could be for any number of possible reasons, only one of which might be that the employer is prejudiced against some class of people of which that individual is a member. Since the very same action may be legal or illegal depending on the motive, the government (meaning prosecutors, judges, etc.) must decide whether the action was taken for good reasons or bad reasons.

Such decisions take time. In the case of the fired dental assistant in Iowa, it took three years for the case to get up to the state supreme court.

In other words, antidiscrimination law means that a large number of private decisions are no longer final until a protracted and expensive process of litigation has taken place. Actions can be observed, but motivations must be inferred. This means that government officials must make highly subjective inferential decisions about the motivations for which actions took place. Ironically, laws whose goal is to prevent arbitrary treatment by private persons radically increase the ability of powerful government officials to treat people arbitrarily.

Whether the horrible treatment of black people in America justified such an extreme remedy as antidiscrimination “law” is beyond the scope of the present discussion. However there can be no doubt that the civil rights laws have been a precedent that has been expanded beyond all reasonable limits. There are now all sorts of “discrimination” that have been made illegal.

In the Iowa case, the fired assistant was admittedly a top-notch and experienced worker for whom her former employer would give excellent references. She should have had little difficulty in finding a good job with another dentist, in which case her financial losses from losing her previous job would have been minimal.

I do hope her lawyer was working on a contingency fee basis, as otherwise she will be out a serious amount of money.

Page 2 of 2 - Nobody has a kind word for the Iowa dentist, and neither do I. But even bad people can have a good case, and the Iowa Supreme Court should be congratulated for not extending antidiscrimination law even further than required by current statutes. It would be even better if legislatures would reconsider the propriety and wisdom of making an endless list of discriminations illegal in the first place.

Paul F. deLespinasse, who now lives in Oregon, is professor emeritus of political science at Adrian College. He can be reached via his website, www.deLespinasse.org, which also contains a link to a book in which he discusses the problems with antidiscrimination law more fully.